Anger boils over as Whatcom County weighs ban on rural building

The south fork of the Nooksack River near Acme, April 17, 2015. The Washington state Supreme Court recently ruled that Whatcom County must make sure there is enough available water before issuing permits for new developments in rural areas, in part to protect salmon-bearing streams like the Nooksack.
The south fork of the Nooksack River near Acme, April 17, 2015. The Washington state Supreme Court recently ruled that Whatcom County must make sure there is enough available water before issuing permits for new developments in rural areas, in part to protect salmon-bearing streams like the Nooksack. pdwyer@bhamherald.com

Saying it needed more time to find solutions in light of a Supreme Court ruling, the County Council is considering a 6-month ban on new developments that depend on water from what are known as exempt wells.

The proposed measure, as well as the county’s existing 60-day moratorium, came up Tuesday during the council’s meeting when property owners and real estate agents packed the council chambers. Angry and frustrated, they wanted the council to lift its existing temporary prohibition and not consider a new one, even as the county said it can’t, legally, ignore the Supreme Court’s ruling.

“I’m as frustrated as you are,” County Executive Jack Louws said. “It hurts me, the situation we’re in.”

It’s unknown exactly how many property owners are affected, but Louws said there are up to 19,000 developable lots in Whatcom County and about 8,000 of those probably would rely on exempt wells.

The court ruled Oct. 6 that Whatcom County must make sure there was enough water available before issuing permits for such developments in rural areas that rely on private exempt wells.

The decision overturned a February 2015 state Court of Appeals ruling that had favored the county.

The court sent the case back to the Growth Management Hearings Board for the next steps.

There will be a Dec. 6 public hearing on the proposed six-month ban before the County Council. If approved, it would replace the 60-day emergency moratorium the County Council issued Oct. 25. Council member Barbara Brenner voted against it.

County officials said they needed to show they were working on the next steps or control could be taken out of the county’s hands if the Growth Management Hearings Board invalidates its comprehensive plan, which guides planning in the county over 20 years.

Property owners on Tuesday said the council should not extend the moratorium, turned in a petition with at least 414 signatures, noted the council was elected to serve the residents of Whatcom County and not the Supreme Court, and asked members to hold off and wait for a fix from the Legislature, specifically from state Sen. Doug Ericksen, R-Ferndale.

“It’s a legislative issue and it can be fixed that way,” said Laura Sanderson, a real estate agent with RE/MAX Whatcom County.

Jon Rockwood, with Rockwood Realty, read a letter on behalf of clients Olga and Gennadiy Skachkov, who said they can’t sell their property on Slater Road near Ferndale for their retirement because of the moratorium.

“Because of your emergency moratorium, our property will be worth only pennies on the dollar. We don’t understand how this can happen to us,” the couple said in the letter. “We are so confused how basically overnight everything we have worked so hard for can all be taken away from us.”

Others said they’ve spent years and thousands of dollars preparing their property to apply for a building permit, only to be told everything is on hold – a situation that also would affect their financing.

Allen and Sasha Meeks bought 5 acres near Bellingham to build their country dream home.

“We had been assured by our contractors, water association, various county permitting departments, real estate agents and everyone else involved in our process that gaining our building permit would be no problem,” Allen Meeks said. “I’m now left with land that will have completely financially ruined my family’s dream of building our home due to my inability to attain my building permit.”

After residents spoke, council member Rud Browne told attendees that the county spent hundreds of thousands of dollars and three years fighting the court case.

“We are devastated by the impact of the stories we’re hearing from people,” Browne said. “We don’t feel this is fair, either.”

Legal background

The fight that led to the Supreme Court decision had been working its way through the courts since 2013, from a challenge filed by anti-sprawl group Futurewise and four citizens – Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim.

That was when the County Council appealed a state Growth Management Hearings Board order that the county do a better job with its land-use rules to protect the supply of water in streams and underground, which in turn affects water that is available for other uses such as salmon habitat.

In its June 2013 ruling, the Hearings Board listed several approaches the county could take, including limiting or denying wells in rural areas in the future.

At issue, according to the board, was that the county had allowed exempt wells – meaning a property owner didn’t need a water right to draw from such a well as long as fewer than 5,000 gallons of water weren’t taken a day – in stream basins that had been closed to new water rights applications.

Basins were closed to new water rights under a 1985 state rule, called the Nooksack Rule, to protect stream levels and the salmon that live in them.

The county had argued it was meeting a requirement placed on local governments to protect their water resources because the county relied on the state rule, which didn’t apply to exempt wells. The Washington State Department of Ecology agreed with that assessment.

The county said, then, that its comprehensive plan did protect the availability of water as required by the Growth Management Act.

The Supreme Court disagreed with the county’s approach to water allocation.

“This results in the county’s granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow,” the Supreme Court stated in its majority opinion. “We therefore hold that the county’s comprehensive plan does not satisfy the GMA requirement to protect water availability.”

Kie Relyea: 360-715-2234, @kierelyea